Kandru Venkateswarlu and Others vs Government of A.P. and Others

Lingaraja Rath, J.—The petitioners are some of the electors of Panidem Gram Panchayat, Sattenapalli Mandalam, Guntur District, and have come before this Court impugning the election to the office of sarpanch of the gram panchayat held on 27-6-1995 in which the respondent No. 6 is said to have received more votes than respondent No. 5 who polled the next highest. The basis for challenging the election is that even though all the four candidates who had filed nominations had withdrawn their candidature, yet the Election Officer, respondent No. 4, erroneously treated the respondents 5 and 6 to have survived the withdrawals since they had filed two valid nominations each and according to him the withdrawals by the respondents 5 and 6 related to only one of the nominations of each one of them, for which they were entitled to contest the election on the basis of other nominations. Mr. M. Chandrasekhara Rao, learned Counsel appearing for the petitioners, urges the approach of the election officer to be against the law inasmuch as the withdrawal of the candidates related to their candidature as a whole and not only in respect of a particular nomination papers.

In pursuance of notice issued counter-affidavit has been filed by the respondent No. 4 as well as by respondents 5 and 6. The counter of respondent 4 discloses that in all four candidates, namely, 1. Panchumarti Vasudev Rao, 2. Sakamuri Venkata Rao, 3. Panchumarti Brahmaiah and 4. Nitnmagadda Venkateswara Rao, had filed nominations but so far as No. 1 and No. 4, i.e., Panchumarti Vasudev Rao and Nimmagadda Venkateswara Rao are concerned, they had filed two nominations each. There were thus six nomination papers before the Election Officer. As all the six were valid, he published the list of validly nominated candidates on 14-6-1995 showing all the four as validly nominated but later on all the four filed withdrawals in Form 6 of Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules 1994, issued in G.O.Ms. No. 755, Panchayat Raj. Rural Development and Relief (MDL-1) Department, dated 30-11-1994 (hereinafter referred as the Rules) in respect of their nominations. The respondent No. 4 treated respondents 5 and 6 to have each withdrawn only one of their nominations, and treating their other nominations as subsisting, allowed them to contest the election in which respondent No. 6 is said to have polled more votes than respondent No. 5.

u/s 268 of the Andhra Pradesh Panchayat Raj Act, 1994 the Government has the power to frame Rules inter alia, regarding conduct of elections. In pursuance of the power, the Rules. Rule 10 of the Rules deals with withdrawal of candidature saying that any candidate may withdraw his candidature by notice in Form 6 signed by him and delivered to the Election Officer. The rule succeeds Rule 9 relating to the scrutiny of nomination papers providing in sub-rule (5), for publication by the Election "Officer of a list of validly nominated candidates and affixture of it to the notice board in Election Officer''s Office in Form 5(2). After the power of withdrawal of the candidature has been exercised by the candidates as in Rule 10, Rule 11 provides for publication of the list of contesting candidates. That stage of the election process hence necessarily comes after the affixture of the list of validly nominated candidates under Rule 9(5) and withdrawals effected thereafter. Rule 11(1) specifically states that the list of validly nominated candidates is to be in Form 8 and is to consist of persons whose nominations have not been rejected and who have not withdrawn their candidature. Sub-rule (3) of Rule 11 provides that if after such publication in Form 8 poll becomes necessary, symbols are to be assigned. A combined reading of the three rules, 9, 10 and 11, hence unmistakably shows that the withdrawal by a candidate relates not to any one of his nominations but to his candidature as a whole and that once the withdrawal option is exercised, the list of valid nominations are to be published without the names of the candidates who have withdrawn. If the Election Officer finds that there is only one validly nominated candidate, there would not be any question of allotment of symbols under Rule 11(3) as no poll would be necessary and the single candidate is to be declared unanimously elected. The matter is clear from the wordings of Rules 10 and 11 itself which only refer to withdrawal of candidature. Even further, Form 6 in which the withdrawal is made is explicit saying in the notice purported to be given to the Election Officer that "I..............., a candidate validly nominated at the above election do hereby give notice that I withdraw my candidature". The signed forms have been also produced before us, and show the withdrawals to be in the same form. There hence cannot be any mistake nor any interpretation made that when a candidate exercises the option to withdraw, the exercise is in respect of any one of the nominations only. Such a meaning goes against the provisions of the rule and the form and the entire scheme of the election. There is no warrant for it. The stand adopted by the Election Officer is also patently without any rational meaning as if a candidate has filed more than one valid nominations, there could not be any reason why he would withdraw only one of his nominations.

The effect of withdrawals of all the candidates of their candidature is to leave a void in the field of election with no candidates available to contest or anyone to be declared unanimously elected. The only action to be taken, by the election authorities in such cases, is to call for nominations afresh and conduct the election according to law.

Article 243-O(b) of the Constitution no doubt stipulates a bar of no election being called in question except by way of an election petition presented before the prescribed authority. While that is so, yet the bar relates only to an election held under the Act and Rules, i.e., an election which has been held with jurisdiction, by the Election Officer or other authorities. But where there is no jurisdiction to hold the election, say, for example, where no election notification has been published in respect of the constituency or no election officer has at all been designated, the purported exercise styled as election of having been held cannot be said to be an election held under the law disentitling the high prerogative Courts to declare the action non est. The action taken would not be a statutory one but would be a purely administrative and executive action without jurisdiction and would thus be amenable to the jurisdiction of the Court under Article 226 of the Constitution of India. If all the four candidates withdrew their candidatures the election purported to be held with two of them as contesting candidates was an act wholly without jurisdiction. It cannot be said to be an election as contemplated under Article 243-O(b) or under the Act. We have hence no hesitation to hold that the bar under Article 243-O(b) does not extend to a case of this type to pose a bar to declare it as not an election held at all.

Mr. Ramana Reddy, the learned Counsel for the respondent No. 6, urges that since not only the Election Officer, respondent No. 4, but also the two candidates understood the poll process to have been validly undertaken and the election has been held, it should be held that the results of the elections have not been materially affected and the results should be allowed to stand. We are not impressed by the submission. The question whether the results of the election have been materially affected arises for consideration by the Tribunal only when an election has been held under the law but that the results of it are, for the reasons as enumerated in Rule 12(d)(i) to (iv) of the Andhra Pradesh Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules 1995, have been materially affected. But where there is no so-called election held at all but is only a purported act styled as an election, in a way masquerading for it, this Court would have the jurisdiction to set it at naught. In the result, we find the entire election process starting from the declaration of validly nominated candidates under Rule 11 in respect of the gram panchayat to be void and quash the election from that stage. The respondents are directed to take steps for holding a proper election to the office of sarpanch. In the result, the writ petition is allowed with costs. Advocate''s fee Rs. 500/-.